Carrington v. W. A. Soefker & Son, Inc.

• Decision Date: 14 September 1981
• Parties: James CARRINGTON, d/b/a Carrington Construction Company, Plaintiff-Appellant, v. W. A. SOEFKER & SON, INC., Defendant-Appellee.
• Court: Tennessee Court of Appeals

Page 894

624 S.W.2d 894

James CARRINGTON, d/b/a Carrington Construction Company, Plaintiff-Appellant, v. W. A. SOEFKER & SON, INC., Defendant-Appellee.

Court of Appeals of Tennessee, Western Section, at Jackson.

Sept. 14, 1981.

Application for Permission to Appeal Denied by Supreme Court

Oct. 13, 1981.

Joseph M. Cook, Memphis, for plaintiff-appellant.

Carl H. Langschmidt, Jr., W. Stephen Gardner, Memphis, for defendant-appellee.

NEARN, Judge.

Appellant James Carrington, d/b/a Carrington Construction Company, entered into a contract with appellee, W. A. Soefker & Son, Inc., in which Carrington became a sub-contractor to perform sewer installation work on the Federal Youth Center Project at Memphis. Soefker had contracted with the Federal government to perform a major portion of the underground plumbing and electrical installation on the project. Carrington began working on the project July 16, 1975. On July 28, 1975, Soefker sent a letter to Carrington stating that Soefker considered Carrington to be behind schedule and in breach of contract. Soefker further stated that unless by July 30, at 8:00 a. m., Carrington personally took over supervision of the job and had equipment satisfactory to Soefker on the job site, Soefker would take over the job from Carrington. On August 1, Soefker sent a second letter to Carrington notifying him to cease operations. Although Carrington apparently did some minor work on the project after that time, Soefker completed the major portion of Carrington's contract.

Carrington sued Soefker to recover payment for the work Carrington had performed and for damages Carrington allegedly sustained as a result of Soefker's refusal to allow Carrington to complete the contract.

Soefker counterclaimed against Carrington, alleging that Carrington had breached the contract, thus requiring Soefker to complete the work at a cost in excess of the contract price. In addition, Soefker claimed that under the contract between the parties, Carrington was liable for all of Soefker's costs, expenses and attorney's fees arising out of this litigation. After trial, the Trial Judge, sitting without a jury, dismissed the complaint by Carrington and found in favor of Soefker in the amount of $364.15 for actual damages for breach of contract (the amount in excess of the contract price that it cost Soefker to complete the contract) and $3,802.66 for expenses incurred in the lawsuit.

Carrington contends on appeal that the Trial Judge erred in holding (1) that Carrington, rather than Soefker, had breached the contract and (2) in awarding attorney's fees and expenses to Soefker.

The first issue is essentially a factual dispute as to whether Carrington's performance on the job was sufficiently unsatisfactory by August 1, 1975, to constitute a breach of the contractual provisions calling for performance according to a construction schedule. When reviewing findings of fact by a Trial Court sitting without a jury, this Court proceeds de novo upon the record accompanied by a presumption of correctness unless the preponderance of the evidence is otherwise. Rule 13(d) Tennessee Rules of Appellate Procedure. We find the evidence in this case does not preponderate against the holding of the Trial Judge that Carrington breached the contract.

The contract between Carrington and Soefker consisted of two and a half pages of provisions typed on Soefker's purchase order form, standard terms on the reverse side of the purchase order form, and by incorporation in the typed provisions, the same terms, provisions, and specifications that existed between Soefker and the Federal government. Carrington's signature accepting the contract appears on the typed purchase order form. The typed provisions included the following:

The Federal Youth Center project will be scheduled and controlled by use of Graph Schedule which will be updated regularly. This schedule will be on display in the Contractor's office at the job site. All subcontractors are hereby directed to review this schedule with the General Contractor. The subcontractor agrees to perform in accordance with this schedule, and will meet all times shown thereon subject to conditions beyond his control. Shortage of manpower or late delivery dates by his material or equipment suppliers will not be considered conditions beyond the subcontractor's control. The subcontractor or subcontractors failing to meet the schedule agree to reimburse the General Contractor for any and all liquidated damages that may be assessed against and collected from him by The Owner.

The evidence revealed that by July 30, 1975, Carrington had ditched and laid 1,065 feet of pipe but, because of a failure in his equipment, had not completed the installation of any of the pipe by properly backfilling the ditches. Soefker contended that the failure to backfill as the work proceeded put Carrington behind the "Construction Progress and Payment Schedule" on display at the job site and justified Soefker's subsequent actions.

Carrington contends on appeal that, regardless of the construction schedule, Carrington had until September 19, 1975, the last date on the schedule, to perform his work and therefore he was not in breach on August 1, 1975. However, the language of the contract quoted above is clear that the contract contemplated performance according to a schedule and thus a breach could occur prior to the final performance date. For this reason, the case of Brady v. Oliver, (1911) 125 Tenn. 595, 147 S.W. 1135, relied upon by appellant, is not on point. In Brady, the Court found that the owner was not justified in rescinding a construction contract before the time for performance had expired. However, the contract in the Brady case did not include a schedule clause such as that in the contract involved here. Soefker did not contend that Carrington would have breached the contract; he contended that Carrington had already breached by July 18, the first completion time specified on the construction schedule.

Carrington further contends on appeal...